Housing benefit - Assessment

Child Poverty Action Group v Secretary of State for Work & Pensions: Queen's Bench Division, Administrative Court (Mr Justice Supperstone)(London): 13 October 2011

In June 2010, the government set out its plans for reforming housing benefit. As part of that programme, changes to the rules for calculating housing benefit were brought into effect on 18 March and 1 April 2011. Article 2(3)(b)(iii) of the Rent Officers (Housing Benefit Functions) Amendment Order 2010, SI 2010/2836 amended schedule 3B of the Rent Officers (Housing Benefit Functions) Order 1997, SI 1997/ 1984, so that local housing allowance (LHA) weekly rates were capped at £250 for a one-bedroom property; £290 for a two-bedroom property; £340 for a three-bedroom property; or £400 for a four-bedroom property.

The amendment was made under section 122 of the Housing Act 1996 (the 1996 act). Regulation 2(6)(a) of the Housing Benefit (Amendment) Regulations 2010, SI 2010/2835 amended regulation 13D of the Housing Benefit Regulations 2006, SI 2006/213 by reducing the largest category of dwelling for local housing authority determinations from five to four bedrooms. That amendment was made under sections 175 and 130A of the Social Security Contributions and Benefits Act 1992 (the 1992 act). The claimants applied for judicial review of those amendments.   

It contended first, that the introduction of maximum weekly caps on the amount of LHA was ultra vires. The claimant submitted, inter alia, that it followed from the statutory purpose of the housing benefit scheme and from the fact that rents varied across the country that the LHA rates had to be set by reference to local conditions, with rent officers exercising independent judgment to make area-based determinations. Secondly, it contended that the secretary of state had failed to comply with his general equality duties under the Race Relations Act 1976 (the 1976 act) and the Sex Discrimination Act 1975 (the 1975 act) both in relation to the reduction in the maximum category of dwelling from five to four bedrooms and in relation to the imposition of maximum weekly caps. The application would be dismissed.

(1) The statutory purpose of the housing benefit scheme was to assist claimants with rent, while also protecting the public purse. The authorities made it clear that the scheme was designed to enable the secretary of state to strike an appropriate balance between the interests of claimants and tax payers (see [36] of the judgment).

In the instant case, it could not realistically be claimed that the reformed scheme was ‘designed to produce homelessness’, or that it would ‘require a radical deterioration in... a person’s residential circumstances’. The secretary of state’s powers under the 1996 act were very broad. He was not required to confer on rent officers powers to set LHA rates without limitation. There was no express requirement for housing benefit to be set at a level that fully covered any given claimant’s actual housing costs in that area.

Further, there was no indication in section 130 of the 1992 act that the ‘maximum’ might not be set at a level that put some areas beyond a claimant’s reach. There was nothing in the primary legislation that prevented the secretary of state from introducing maximum caps in addition to the area-based calculation (see [37]-[38], [40]-[42] of the judgment). The introduction of maximum weekly caps on the amount of local housing allowance was not ultra vires (see [78] of the judgment).

R v Housing Benefit Review Board for East Devon District Council, ex p Gibson 25 HLR 487 applied.

(2) Section 71 of the 1976 act and section 76A of the 1975 act both required the secretary of state to have due regard to the need to eliminate discrimination and to promote equality. It was established authority that what was 'due' depended on what was proper and appropriate to the circumstances of the case. Therefore, if a challenge was made, the question of due regard required a review by the court. It was not simply a question of determining whether no regard at all was had to the statutory criteria. How much weight was to be given to the countervailing factors was a matter for the decision maker. But that did not abrogate the obligation on the decision maker in substance first to have regard to the statutory criteria on discrimination (see [70]-[71] of the judgment).

In the instant case, it was clear that the secretary of state had been well aware of his equality duties and had paid specific regard to them. He had carried out two Equality Impact Assessments (EIAs). Further he had considered and responded to criticisms levelled at him during the legislative process. The secretary of state was entitled in performing his equality duties to have regard to the EIAs that contained the information relied upon in those assessments. The information gathered and considered by the secretary of state was adequate for the purposes of performing his statutory duty (see [73]-[76] of the judgment).

The secretary of state had not failed to comply with his general equality duties under the 1976 and the 1975 acts in relation to the reduction of the maximum category of dwelling for LHA determinations, or in relation to the introduction of maximum weekly caps on the amount of local housing allowance (see [78] of the judgment). R (on the application of Sanders) v Harlow District Council [2009] All ER (D) 86 (Mar) applied.

Martin Westgate QC and Jamie Burton (instructed by Child Poverty Action Group) for the claimant; James Eadie QC and Catherine Callaghan (instructed by DWP Legal Group) for the secretary of state.